Would you disinherit your children? An issue for Scottish wills

Do you want to disinherit your children? From 1 February 2012 if you die without leaving a will your spouse will have a “prior right” to your home up to the value of £473,000.

If you have children from a previous marriage and you don’t write a will then you may unintentionally disinherit them.

The case of Betty and Jim is an example. Betty was married to Jim and they had two children. Sadly, Jim died young. Betty inherited the family home and the mortgage was paid off by Jim’s life insurance.

Jim had insured his life to provide for his wife and children in the event of his death. His expectation was that they would benefit from his death and inherit his wealth.

After a while, Betty met Paul, they married and Paul moved into the house. Paul also had a child from a previous marriage.

Shortly after, Betty died without leaving a will. The house in which she and Paul lived was worth £400,000. This was Betty’s main asset and her estate was worth little more.

Betty’s children inherited a very small sum on her death and because Betty hadn’t left a will, Paul inherited the house.

When Paul subsequently died he left everything, including the house, to his own child. Betty’s children received no part of the house that had originally been bought and paid for by their mother, Betty, and their father, Jim.

Should the law favour married partners over children to such an extent?

As the law currently stands, the limit is £300,000 and it’s increase next month (1st February 2012) is seen as a positive move by the government. Speaking to the BBC, Minister for Community Safety and Legal Affairs Roseanna Cunningham said:

“These small but much needed changes will offer protection for those who have lost a loved one and are left to deal with the consequences when no will has been made

“The increase in limits to £473,000 means that most people in Scotland will be able to stay in the family home they shared with their spouse or civil partner, sparing them the distress and disruption of leaving their homes at such a difficult time.”

There has been no debate in the Scottish Parliament about this change. The issue, however, is not that the limit has been increased. This is a zombie law and it is time to look at whether it is appropriate in the 21st century.

Is it an unreasonable expectation that children should benefit from their parents estate? Most people expect the law to arrange the flow of wealth down the generations from parents to children but this legislation ignores children from previous marriages.

The case of Betty and Jim shows that you cannot make any assumptions about what will happen to your estate when you die unless you make a will.

If you don’t want to disinherit your children, make a will – now.

If you would like to find out more about making a will visit MyScottishLaw and to find out about a free consultation.